Can a nominated Councillor be appointed as Leader of the House under Maharashtra Municipal Corporation Act, 1949? Bom HC elaborates

Bombay High Court: The Division Bench of A.A. Sayed and S.G. Dige, JJ., considered the issue of whether a nominated Councillor can be appointed as Leader of the House under Section 19-1A of the Maharashtra Municipal Corporation Act, 1949.

High Court expressed that,

The term ‘elected Councillor’ in Section 19-1A would necessarily have to be read as an exclusion and bar to any other Councillor i.e ‘nominated Councillor’ to become the Leader of the House.

Petitioner was a Councillor elected at the Ward elections of the Pune Municipal Corporation held in February 2017. Respondent 1 was a nominated Councillor who was appointed as a Leader of the House in the Pune Municipal Corporation and respondent 2 was the Mayor of the Pune Municipal Corporation, whereas respondent 3 was the Pune Municipal Corporation and respondent 4 the State of Maharashtra.

Background

Bharatiya Janata Party (BJP) emerged as the largest party with 99 elected Councillors. The National Congress Party (NCP) was declared as second largest party with 42 elected Councillors. 10 Municipal Councillors and Congress party and 10 Municipal Councillors of Shiv Sena party came to be elected.

Law 

Section 5 of the Maharashtra Municipal Corporation Act, 1949 deals with the constitution of the Corporation and provides that each Corporation shall consist of such number of ‘elected Councillors’ as mentioned in the table therein and ‘nominated Councillors’ not exceeding five having special knowledge and experience in the municipal administration can be nominated in the manner prescribed.

In terms of Rule 5 of the Maharashtra Municipal Corporation (Qualifications and Appointment of Nominated Councillors) Rules, 2012 in proportion to the strength of the House, BJP could nominate three Councillors, NCP could nominate one Councillor and Shiv Sena could nominate one Councillor.

Factual Matrix

Petitioner and respondent 1 had contested the 2017 Ward elections of the Corporation and the petitioner had secured the highest number of votes and was elected to the Corporation. Respondent 1 was the unsuccessful candidate. Respondent 1 was appointed as Leader of the BJP in the Corporation and pursuant to his appointment under Section 19-1A of the said Act, the said appointment was challenged in the present petition.

Issue

Petitioner questioned the appointment of respondent 1 as Leader of the House on the ground that he was not eligible for such appointment and his appointment was against the statute. Hence, the petitioner sought a writ of quo warranto seeking the quashing the appointment of respondent 1 as Leader of the House.

Analysis and Discussion

High Court noted that as per Section 19-1A, only an ‘elected Councillor’ shall be eligible to be a Leader of the House and the entire controversy rests on the term ‘elected Councillor’.

In Court’s opinion, the term ‘elected Councillor’ used in Section 19-1A would mean only and only a Councillor who is directly elected at the election of the Ward and not a nominated Councillor.

If the intention of the Legislature was to treat both the categories of Councillors equally and to include even a nominated Councillor to be eligible to be appointed as Leader of the House under section 19-1A, the said section would have simply said ‘Councillor’ and not ‘elected Councillor’ 

Adding to the above, Court stated that interpreting the word ‘elected Councillor’ to be inclusive of a ‘nominated Councillor’ in Section 19-1A would be stretching the meaning of ‘elected Councillor’ out of context in reading the said Section 19-1A.

Nominated Councillors and Elected Councillors differ from each other, be it their route of entry into the Corporation, their right to vote, etc. Hence, only because in certain aspects and certain circumstances they are treated or judicially held to be treated equally, in Court’s opinion, it would be fallacious to treat both of them as one and the same.

Elaborating further, the Bench added that, at the stage at which the ‘Leader of the House’ occupies his/her seat, the Corporation constitutes only of elected Councillors and there is not even a single nominated Councillor in the Corporation.

Hence, it means that the pre-requisite for any person to get nominated as even the first nominated Councillor of the Corporation is the consultation with the ‘Leader of the House’ by the Commissioner.

High Court held that, a person who was not successful in the Ward Elections cannot by an indirect method or backdoor entry become the Leader of the House, if the legislature has placed an embargo upon a Nominated Councillor, that he/she shall not have the right to vote or become a Mayor as per Section 2(11), Legislature did not intend to allow a nominated Councillor to become the Leader of the House.

While concluding the matter, prima facie, it seemed illogical for the Court to comprehend that after being defeated by will of the majority at the Ward election by process of ballot, how Respondent could be eligible to be appointed as ‘Leader of the House’.

Supreme Court’s decision in Nasiruddin v. Sita Ram Agarwal, (2003) 2 SCC 577, It was held that,

“35. In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. …” 

Verdict

‘nominated Councillor’ is not an ‘elected Councillor’ within the meaning of Section 19-1A and unless a person is an elected Councillor, in that, he is directly elected at Ward elections, he is not eligible to be appointed as ‘Leader of the House’ under Section 19-1A.

Therefore, the appointment of respondent 1 was quashed and set aside.

Note: Counsel for respondent 1 sought stay to operation and effect of the Judgment for 2 weeks, to which this Court stated that, Only on the assurance of the Senior Counsel that the Respondent 1 would not discharge functions as Leader of the House in the Corporation, Court would stay the operation of this order for a period of 2 weeks.

[Ravindra Hemraj Dhangekar v. Ganesh Madhukar Bidkar, 2022 SCC OnLine Bom 439, decided on 28-2-2022]


Advocates before the Court:

Mr. Kapil A. Rathor a/w Mr. Harshad Mandke and Mr. Heenesh Rathod for the Petitioner.

Mr. Ravi Kadam, Senior Advocate a/w Ms. Manjiri Parisnis for Respondent No.1.

Mr. Milind Sathe a/w Mr. Pralhad Paranjape, Ms. Druti Datar for Respondent No.2.

Mr. A.Y. Sakhare, Senior Advocate i/b Mr. Abhijit Kulkarni for Respondent No.3.

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. P.P. Kakade, Government PLeader, Mr. Akshay Shinde, B Panel Counsel a/w Mr. R.M. Shinde, AGP for Respondent No.4.

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